APPLYING EU ANTI-DISCRIMINATION LAW PRIMJENA EUROPSKOG ANTIDISKRIMINACIJSKOG PRAVA

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1 SEMINAR ZA PREDSTAVNIKE SUDBENE VLASTI (EC, ERA, PA) APPLYING EU ANTI-DISCRIMINATION LAW PRIMJENA EUROPSKOG ANTIDISKRIMINACIJSKOG PRAVA Zagreb, May Legal sources of protection against discrimination in the Republic of Croatia - Anti-Discrimination Act (Official Gazette, 85/08, etc.) - Gender Equality Act (Official Gazette, 82/08) - EU Directives 1

2 REGULATION ON THE PROCEDURE AND REGULATION CONTAINING PROVISIONS ON THE BURDEN OF PROOF - Labour Code (Official Gazette, 93/14) Burden of proof in labour disputes Article 135 (1) In case of a labour dispute, the burden of proof lies on the person who is claiming a certain right resulting from the employment relation, or the person who is initiating the dispute, if not otherwise stipulated by this or other law. (2) In case of a dispute where a worker was put in a disadvantegous position because he or she pointed out that there is a reason to believe in possible corruptive activities or filed an application regading such a possibility to a competent person or state body, and which entailed a breach of a particular employment right, if a worker makes probable that he or she was put in a disadvantageous position resulting in a breach of a particular employment right, the burden of proof shifts to the employer who has to prove that the worker has not been put in a disadvantageous position, that is that his or her employment right has not been breached. Civil Procedure Act (Official Gazette, 53/91, etc.) INTERRELATION BETWEEN FORMS OF PROTECTION THE ADVENTAGE OF THE CIVIL FORM OF PROTECTION - Initiation of proceedings of thier own choice - Possibility of indemnification/compensation - Exclusion of intention as a precondition for protection 2

3 (individual) Forms of claims in line with the Anti- Discrimination Act: Declaratory, prohibitive, restitutive, reparatory, publication Burden of proof Art. 20/1 If a party to legal or other proceedings claims that his or her right to equal treatment is breached pursuant to the Anti- Discrimination Act, that party is obliged to establish probability of a case of discrimination. In that case, the burden of proof lies on the other party. SHIFT OF THE BURDEN OF PROOF Art. 20/2 Exclusion in criminal or infringement proceedings Burden of proof in other circumstances (damage, amount of damage and similar) Application of other reference provisions of the Civil Procedure Act (prior procedure, limitations regarding the annulment of first-degree rulings, intervener sui generis, etc.) Collective court protection 3

4 Dilemmas regarding expertise: - establishment of diagnosis - establishment of causal links of infringement, i.e.non-material damage - assessment of the gravity - Orientation criteria for the Croatian Supreme Court - Other material legal and process issues (statute of limitation, costs, etc.) Issues regarding the interrelation between the burden of proof and other rights regulated by the EU law CJEU, Patrick Kelly v The National University of Ireland (University College, Dublin) Case C-104/10, 21 July 2011 Burden of proof vs. Right to privacy 4

5 Application of related institutes The Labour Code- Protection of Workers Dignity (Article 134) Mobbing The Civil Obligations Act (Official Gazette, 35/05, etc.) the protection of personality rights Concluding remarks: Collaboration between state bodies Ombudsperson, Gender Equality Office The impact of ECHR and CJEU judicature, in the interpretation of EU law Use of institutes and proceedings resulting from the classic civil law Media interest/protection of privacy Thank you for your attention! Domagoj Frntić, dipl.iur., President of the Municipal Labour Court in Zagreb 5